Allowed

Central Bank of India v. Sri Mukul Gogoi

DRT19 Jul 2023OA/178/2022

Case brief

AI extract

What is this about?

An application filed by Central Bank of India under Section 19 of the RDDBFI Act for issuance of a recovery certificate against the borrower and his legal heirs was allowed. The court found the debt acknowledged and valid, issuing a certificate for Rs. 26,63,470.23 with interest.

What did the court decide?

Issuance of Recovery Certificate for Rs. 26,63,470.23 with pendent lite and future interest at 9.75% pa, charge on mortgaged properties, and entitlement to proceed against secured and personal assets.

Central Bank of India versus Sri Mukul Gogoi — Execution and Attachment | DRT (2023)

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O A 178[20220RT_Guwahair

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IN THE DEBTS RECOVERY^{TRIBUNAL,GUWAHATI}

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(North Eastern Region)

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(Tnbunalof Assam, Nagaland, Meghalaya Manipur lvlizoram Arunachal^{Pradesh&Tripura)}

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Before Shri shiv sharan oubev. Presidino^Officer

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O.A. No. 17812022

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ln the matter of -

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Central Bank of lndia Thanachariali Branch, Jogesh Das Path, Khalihamari, Dibrugarh-786001^.

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.Applicant

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Vs.

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Sri Mukul Gogoi

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S/o Sri Kanal Chandra Gogoi,

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R/o Jibon Phukan Nagar,

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P/O C.R.Building, P.S. & District Dibrugarh, Assam, Pin-786003.

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Smtii Anjali Das Phukan Wo Late Nitya Nanda Phukan,

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R/o Asomi Sangha Path, Milan Nagar, P/o C.R.Building, P.S. & District Dibrugarh, Assam, Pin-786003.

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Sri Rishi Raj Phukan

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W/o Late Nitya Nanda Phukan, R/o Asomi Sangha Path, lvlilan Nagar, P/O C.R.Building, P.S. & District Dibrugarh, Assam, Pin-786003.

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Sri Rishab Phukan Wo Late Nitya Nanda Phukan, R/o Asomi Sangha Path, Milan Nagar, P/O C.R.Building, P.S. & District Dibrugarh, Assam, Pin-786003.

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Defendants

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Presence of the Counsel : : Mr Debabrat Talukdar, Advocate For the Applicant For the Oefendants : None (Ex-parte)

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Dated:'19.07.2023

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JUDGMENT

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This is an application under section 19 of the^{Recoveryof Debts DuetoEanks} and Financial lnstitutions^{Act,1993 filed by the centralBank of lndia Thanachatiali}

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([a,, - ] he.r4r" &r^[Li H.o> t\ tl Pr$iding Offc€r DRT, GuwahEli

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O A¹ 78/2o22lDRT-Guwahali

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Branch, Jogesh^{Das Path, Khalihamari,Dibrugarh-786001,with aprayerto} issue Recovery^{Certilicatefor the sum of Rs' 26,63,470'23 (Rupees TwentySix} Laca Sixty Three^{Thousand FourHundredSsventyAnd Paisa Twenty Three)} only as on 23.05.2022^{against the defendantswith pendentelite and futureinterest} @9.75olo^{per annumtill realization along with cost and other relief'}

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A few facts^{giving riseto the present applicationare as under'}

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The defendants No.1^{and Lt. Nitya Nanda Phukan (since deceased) are joint} borrowers to the^{loan.The defendant no. 1 and Nitya Nanda Phukan (since deceased)} are also mortgagors^{to the loan.The say of the applicant bank is ihat Nitya Nanda} Phukan(since deceased)^{during his life time alongwith defendant no l had availedthe} loan facility from^{the applicant bank and in that connection signed and executed several} documents as^{securityfor repayment of lhe loan availedof by him along with defendant} no. 1.The said^{NityaNanda Phukan (since deceased)had also createdequitable} mortgage of a^{plot of land owned and possessed by him However it has cometo the} knowledge of the^{applicant bank that the said Nitya Nanda Phukan hasexpiredThe} applicant bank^{had collectedthe namesand other particularsof the legal heirs and} representatives^{of the deceased borrowerand as such the applicani bankhas} impleaded the^{defendant no. 2 as the wife of the deceased borrower' defendantsno 3} and4arethesonsofthedeceasedborrowerinthiscase'theybeingthelegalheirsand representatives^{of the deceased borrower'}

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The defendants^{No.1 and NityaNanda Phukan(sincedeceased)had} approached^{the applicantbankand applied for financial assistancefor theircontractual} work vide Loan^{Application and the applicant bankafter due considerationvideits} Sanction Letter^{dated'18.0'1.2012had sanctionedone Overdrafiloanof Rs 25'00Lacs} (Rupees Twenty Five^{Lacs) only with interest @'135% per annumwith monthly rest to} the defendants.

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ln connection^{with thesanctionof theLoan facility sanctionedby the applicant} bank and^{availed of by the defendants,the defendantsNo land Nitya Nanda} Phukan^{(since deceased) had signed and executed demandpromissory note and letter of}

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qJ",u SVy,: AJ-l l{ a i )\t Prcsiding^Offcer DRT. Guwahati

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0.A t 7&zo22rE',Rr4u*ehtti

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continuity both^{dated18 01.2012, OverdraftAgreement dated18'012012'Declaration} and Undertaking.

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As security^{for repayment of the abovementioned loan facility the defendant no'} '1 had created equitable morlgage^{of a plotof land withbuildingowned and possessed} by him^{(describedin Schedule-A of the OA) by depositingtitle documentswith the} applicant bank.^{Thedefendantno 1 had conlirmedlhe creationof the equitable} mortgage by deposit^{of title documentsby signingand executingone Letter of lntent} daled 18.01.2012.

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As security for repayment of the above mentioned loan facility,^NityaNanda Phukan (since deceased) had created equitable morlgage of a^plot of land owned and possessed by them (described in Schedule B of the OA) by depositing title documents with the applicant bank. Nitya Nanda Phukan (since deceased) had confirmed the creation of the equitable mortgage by deposit of title documents by signing and executing one Letter of lntent dated 18.01.2012.

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Thereafier regarding the above mentioned loan facility, the defendant no. 1 and Nitya Nanda Phukan^(since deceased) had acknowledged their dues to the applicant bank by signing and executing one Acknowledgement of Debts dated 01.01.2015. The defendant no.1 and Nitya Nanda Phukan (since deceased) had also signed and executed one Demand Promissory Note dated 19.12.2016.

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Thereafter on 06.02.2018 the loan account of the defendants was renewed and accordingly the defendant no. 1 and Nitya Nanda Phukan (since deceased) had signed and executed Demand Promissory Note, Letter of Waiver, Letter of lnterest Variation, Letter of Continuity and Overdraft Agreement all dated 06.02.2018. Further the defendant no. I and Nitya Nanda Phukan (since deceased) had also signed and executed one Loan Agreement and one Declaration and Undertaking both dated 06.02.2018.

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Thereafter the defendant no.1 and Nitya Nanda Phukan (since deceased) had acknowledged their dues to the applicant bank by signing and executing one Acknowledgement of Debts dated 31.01 .2020.

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The Defendants had availed of the said loan facility from the Applicant Bank, but

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etr.,,fl."ra- [J lq c) 22, ,

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DRT, Guwahali

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o.4 1762022/DRT60ah'o

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have not^{paid the loan amount as perthe terms and conditions as agreed uponwith the} Applicant Bank,^{inspite of repeated demands and requests by the ApplicantBank As} the defendants^{failed to repaythe loan amounts,the said account became NPAon} 2g.O2.2O20.^{Afterthe account became NPA the applicantbank issued notices for} repayment of the^{due amount, but the defendants have neither chosenfor repaymentof} the loan amount^{nor approachedto the applicant bank for renewalof the overdraft loan} account.

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The applicant^{bank thus became constrained to 6le the presentOriginal} Apptication^{for therecovery of Rs' 26,63,470'23(RupeesTwentySix Laca Sixty} ThreeThousandFourHundredsgventyAndPaisaTwentyThree)onlyason 23.05.2022^{along with interest and cost of the application'}

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After filing^{of the OAthe Tribunal issued notices upon the defendants through} registered^{postand the applicant bank filed service reporton 04'08'2022 and brought} on record^{the postal receipts alongwith track consignment report lt is observedthat} the summons^{have been served upon the defendantNo 1 and the summons have not} beenservedUponlhedefendantNo.2,3&4.ThereaftertheTribunalorderedpaper publication of notice upon^{the defendantNo 2,3 & 4 and ths applicant bankissued} notices to the^{defendanis on 17.08.2022through Paper Publicationin two newspapers} namely^{"TheTimesof lndia" and "Niqmiya Barta" Evenafter proper serviceof notice} upon the defendant^{No.1 and even after issuan@of notices uponthe defendants No'} 2,3 & 4 through^{paper publication also therewas no representation on behalf of the} defendants^{eitherby the counsel or the person and hencethe defendants were} made set ex-parte^{o n 02.1'1.2022 andlheir right to Jile written statement cum evidence} onaffidavitwasclosedandthematterwaspostedforheaingonbehalfofthe applicant bank.

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Supporting^{the claim of the applicant bankMohammad Oanish' Chief Managerof} the Applicant^{Bank has filed evidence on affdavitcoupledwith thesecurity} documents marked^{as Exhibit AW-1/1to Exhibit AW- l/24supporting theclaim of the} applicant bank. q fu v: fu v: v: [a,,gr' "

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q fu v: fu v: v: [a,,gr' & J " qc))! | Pr63iding Offc€r DRT. Guwahali

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O A l78rl2o2zoRT4uwahatr

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Heard the leamed^{counsel for theapplicant bank whoprayed for issuance of} Recovery Certificate^{againstthe defendants as perpleadings madein the Application'} supported by evidence^{on affidavit of their witnesswho alfirmed on oath ihe execution} of the security^{and othet documentsby the defendants and also execution of lheir own} documents relied^{upon, which have been markedexhibits'}

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Considering the^{facts and circumstances of the case, I am of theconsidered} view that the^{documentsfiledby theapplicant bankare supporting theclaimof the} applicant bank^{and establishing the liability of the defendantslt is provedthat ihe} defendants are^{liableto pay to the applicant bankthe claim madein the Original} Application. The^{loanswereobtained and documenls have been executedon} 18.01.2012.19.12.2016&06.02.2OlS.ThedefendantNolandNityaNandaPhukan (since deceased) had^{acknowledged their dues to the applicant bank by signing and} executing^{one Acknowledgementof Debts dated 01 01 2015 & 31 01 2020 The} accounts became^{NPA on 29.02.2020and the OA has been filed o^ 23 05 2022'} Hence, the OA^{is Uled well withintheperiod of limitaiion and this Tribunal having a} jurisdiction to adjudicate the^{OriginalApplication'}

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Considering^{the unchallenged/unrebuttedversionof Mohammad Danish' the} applicant's^{witness and all the documents marked as exhibits' includingduly certified} copy of the statement^{of accountalongwith interest calculation sheet maintained by} the applicant^{Bank in it's regular course of business,I hold that the applicantis entitled} to get the Recovery^{Certificate as prayed for'}

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ln the result,^{the present OriginalApplicationNo 178 o12022 is allowed with} cost as under^:-

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i) The defendants^{No. 1,2,3& 4 are.iointly and severally liableto payto the} applicant bank^{a sum of Rs'26,63,470,23(Rup8es Twanty Six Laca Sixty}

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Throe Thousand^{Four Hundred sevsnty AndPaisaTwentyThr6e)only} with^{pendenteliteand futureinterest} @9.75016^{p a with monthlyrests from} 24.05.2022 till the^{date of full paymenurealizalion and also cost of the} application. qX"r-di,r#

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qX"r-di,r# h Presiding Offcar DRT. Guwahali

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o'A 17Er2g2zoRT€ux'hati

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The liability^{of the defendants No 2'3 & 4 will be to the extent of value of their} sharesinheritedinihemortgagedpropertyaslegalheirsofthedeceased Late Nitya^{Nanda Phukan but theirliabiliiywill not exceed the certificate} amount, with^interest @9.75olo^{p a and cost'}

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ii) Thechargeofthecertificatedamountbekeptaliveonmortgagedpropertyi.e. a^plot of^{tandwith buildingmeasuring 1 Katha bearing Dag No 640' Patta No'} 143 situated^{at extendedKhalihamariGaon Ward' East Milan Nagar'Niz-} Mancotta^{Road, Dibrugarh,Mouza- DibrugarhTown'District-Dibrugarh} owned^{and possessed by the defendant No 1 and is bounded by North- Land} of Sri Ganesh^{Khound:South- Niz-MancottaRoad: East-Landof Sri Dilip} Gogoii West-^{Land ot Aruna Devi, as describedin Schedule-Aof the OA till} the amount^{is realizedin full'}

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iii) The charge^{of the certificated amountbe keptalive on mortgagedpropertyi e'} a^plot of^{land measuring2 Katha 13 12 Lessasbearing Dag No 66'l(P)'Patta} No. 129^{situated at Asomi SanghaPath'MilanNagar'Extended Chiring Gaon} Ward, Oibrugarh,^{Mouza-DibrugarhTown' District- Dibrugarh owned and} possessed by^{Late Nitya Nanda Phukanand is bounded by North-Road:} South-^{Land of Dag No 661(P); East- Road; West- Land of Oag No 661(P)'} as described^{in Schedule-Bof the OAtitl the amount is realizedin full'}

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iv) The applicant^{bank is entitled to proceed againstthesecured items towards} recovery^{of the debts'}

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v) The applicant^{bank is also entitledto proceedagainst the personal assets and} properties of the^{defendants towards recoveryof the dues'}

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vi) The applicant^{bankis entitled to the costsof the O A which includes the} advocate^{fees of the applicant bank' Applicant is directed to file the cost} memo^{within 2 weeks from today'}

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vii) lssue Recovery^{certificateaccordinglyfor a sum R3' 26'63'470'23(Rup3s3} Twenty^{SixLacaSixty Thrss Thousand Four Hundred Sevonty And Paisa} Twenty^{Three) only in favour of theapplicantbank againstthedelendants} No'l'2'3&4 s};s'0.n,4-U-

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s};s'0.n,4-Ulq⁰ ).23 Presiding Odicer^/ DRT' Guwahati

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OA 178/202ZDRT4Mahali

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viii) Communicate^{copyof this order to the concernedparties'}

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This order is^{dictated and corrected by the undersigned'}

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Judgment dated^{19th July 2023, signed and pronouncedin the Tribunal today}

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under my signature.

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Copy of the^{JudgmenuFinal Order be uptoaded in the Tribunal's Websiteand}

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file be consigned^{to Record Room.}

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q[',,SLa ra,,.D-rJ.1 "-\f-ct I j I (Shiv Sharan Dubey) -) Presiding Officer DRT, Guwahati.

Central Bank of India v. Sri Mukul Gogoi

Case brief

What is this about?

What did the court decide?

Central Bank of India v. Sri Mukul Gogoi

Case brief

What is this about?

What did the court decide?

What the court decided

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